Citation Nr: 0723590
Decision Date: 07/31/07 Archive Date: 08/14/07
DOCKET NO. 06-10 224 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to death pension benefits.
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
D. Raffaelli, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1956 to June
1960. He died in August 1972, and the appellant is his
surviving spouse.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a March 2005 rating decision from the Los
Angeles, California Regional Office (RO), which denied the
appellant's claim of entitlement to VA death pension
benefits. Subsequently, the case was transferred to the
Reno, Nevada RO.
FINDING OF FACT
The veteran did not have any active service during a period
of war.
CONCLUSION OF LAW
The criteria for basic eligibility for VA death pension
benefits have not been met. 38 U.S.C.A. §§ 101, 1521, 1541,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.2, 3.3, 3.314
(2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Board is required to address the Veterans Claims
Assistance Act of 2000 (VCAA) that became law in November
2000. The VCAA provides, among other things, that the VA
shall make reasonable efforts to notify a claimant of the
relevant evidence necessary to substantiate a claim for
benefits under laws administered by the VA. The VCAA also
requires the VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. § 5103.
In March 2005, the RO notified the appellant of the specific
provisions of the law regarding her claim for VA death
pension benefits. However, the essential facts by which the
appeal must be decided are not in dispute. The matter to be
resolved is legal in nature, and its outcome is determined by
the interpretation and application of the law and regulations
rather than by consideration of conflicting or disputed
evidence. Because the VCAA has no effect on claims when the
question is limited to a matter of law, including statutory
interpretation, the Board need not determine if VA met the
duty to assist and duty to notify requirements of the VCAA.
See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002);
Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet.
App. 227 (2000). Thus, no further action to comply with the
provisions of the VCAA is required.
II. Death Pension
The sole question before the Board is whether the appellant
has established threshold eligibility for VA (non-service
connected) death pension benefits.
The law authorizes the payment of non-service connected
disability pension to a veteran of a war who has the
requisite service and who is permanently and totally
disabled. 38 U.S.C.A. §§ 1502, 1521. The Secretary shall
pay pension for non-service connected disability or death for
service to the surviving spouse of each veteran of a period
of war who met the service requirements prescribed in
38 U.S.C.A. § 1521(j) or who at the time of death was
receiving (or entitled to receive) compensation or retirement
pay for a service connected disability. 38 U.S.C.A. § 1541.
In order to establish basic eligibility for VA death pension
benefits to the surviving spouse of a veteran, the veteran
must have had the requisite service. 38 U.S.C.A. § 1541(a);
38 C.F.R. §§ 3.3, 3.314(b). A veteran has met the necessary
service requirements if he served in active military, naval,
or air service under one of the following conditions: (1) for
90 days or more during a period of war; (2) during a period
of war and was discharged or released from service for a
service connected disability; (3) for a period of 90
consecutive days or more and such period began or ended
during a period of war; or (4) for an aggregate of 90 days or
more in two or more separate periods of service during more
than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. §
3.3(a).
A review of the record shows that the veteran served on
active duty from October 1956 until June 1960. Under 38
U.S.C.A. § 101 and 38 C.F.R. § 3.2(e), (f), specifying
periods of war, the Korean conflict ended January 31, 1955,
and the Vietnam era began August 5, 1964. Thus, the veteran
did not serve 90 days or more during a period of war and, in
fact, had no wartime service at all. As the veteran did not
have any qualifying wartime service, his surviving spouse
does not meet the basic eligibility requirements for VA non-
service connected death pension benefits. In this case, the
law is dispositive. Accordingly, her claim must be denied as
a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
Entitlement to death pension benefits is denied.
____________________________________________
C.W. Symanski
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs